Evidence Muddles Durham’s Case on Sussmann’s F.B.I. Meeting

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One disclosure dovetails with the peculiar counsel John Durham’s indictment against Michael Sussmann, portion respective others clash with it.

It is unclear whether recently  disclosed grounds  successful  the lawsuit  brought by John H. Durham volition  beryllium  admissible astatine  a trial.
Credit...U.S. Department of Justice, via Associated Press

Charlie Savage

Dec. 8, 2021, 7:31 p.m. ET

WASHINGTON — When a peculiar counsel accused a salient cybersecurity lawyer of lying to the F.B.I. during a September 2016 gathering astir Donald J. Trump’s imaginable links to Russia, the indictment presented a lengthy narrative but the nonstop grounds appeared lean.

The indictment said the lawyer, Michael A. Sussmann, had made a mendacious connection by telling an F.B.I. authoritative that helium was not representing a lawsuit successful presenting the information. Mr. Sussmann, who has pleaded not guilty, has denied saying that. No 1 other was contiguous and their speech was not recorded, truthful the nonstop and intelligibly admissible grounds appeared to boil down to 1 witness.

This week, further pieces of grounds emerged into nationalist presumption that were not successful the indictment — 1 of which appears to dovetail with the accusation against Mr. Sussmann by the peculiar counsel, John H. Durham, who was appointed during the Trump administration, portion respective others look to struggle with it.

The worldly emerged successful tribunal filings and astatine a presumption league earlier a justice connected Wednesday.

It is not wide whether each of the recently disclosed grounds volition beryllium admissible. But the jostling betwixt prosecutors and defence lawyers could connection a preview of aspects of the trial, which they said connected Wednesday would past astir 2 weeks and Judge Christopher R. Cooper said could statesman successful May oregon aboriginal June.

While the complaint against Mr. Sussmann is narrow, it has received important governmental attraction successful portion due to the fact that Mr. Durham concluded that the Hillary Clinton run had helped propulsion the suspicions, which acrophobic imaginable concealed communications betwixt machine servers associated with Mr. Trump’s institution and the Kremlin-linked Alfa Bank. The F.B.I. decided the suspicions were unfounded.

In accusing Mr. Sussmann of telling the F.B.I. authoritative — James A. Baker, past the bureau’s wide counsel — that helium had nary clients, Mr. Durham claimed that Mr. Sussmann was really representing some a exertion enforcement and the Clinton campaign. Mr. Sussmann, via his lawyers, denied that helium told Mr. Baker that helium had nary client, portion maintaining helium was determination connected behalf of lone the executive, not the campaign.

One portion of recently disclosed evidence, described successful a filing by Mr. Durham’s squad connected Tuesday evening, consists of handwritten notes by an F.B.I. lawyer to whom Mr. Baker spoke astir the gathering that day. The Durham filing quoted the notes arsenic saying “no circumstantial client.”

That grounds is akin to different acceptable of handwritten notes antecedently cited successful the indictment by different F.B.I. authoritative who besides spoke to Mr. Baker aft the meeting. The indictment quoted those notes arsenic listing Mr. Sussmann’s name, past a dash, past the sanction of his instrumentality firm, past a dash, and past the words “said not doing this for immoderate client.”

It is not wide whether specified notes — oregon grounds by the F.B.I. officials who took them — would beryllium admissible astatine a proceedings nether complex rules of evidence. Those rules mostly prohibition statements made extracurricular tribunal arsenic hearsay, but they marque exceptions taxable to judges’ interpretations.

The indictment besides said that successful February 2017, Mr. Sussmann met with the C.I.A. and conveyed akin and related concerns, citing a post-meeting memorandum by 2 bureau employees that said helium was “not representing a peculiar client.” Mr. Durham portrayed that arsenic showing Mr. Sussmann had repeated a mendacious statement.

But astatine the proceeding connected Wednesday, a lawyer for Mr. Sussmann, Sean Berkowitz, cited grounds turned implicit by the prosecutors past week that muddies that representation by suggesting helium whitethorn alternatively person told them helium had a client.

Emails by bureau unit up of the meeting, Mr. Berkowitz said, included statements similar “Sussmann said helium represents a lawsuit who does not privation to beryllium known” and “the program should beryllium to person Sussmann that it is successful his and his client’s involvement to spell to the F.B.I.” A draught mentation of the agency’s post-meeting memo besides referred to Mr. Sussmann having a client, helium said.

A authoritative moving for Mr. Durham, Andrew DeFilippis, told the justice that “although we’re not, you know, funny successful a afloat factual statement earlier the court,” an bureau worker had spotted the notation to a lawsuit successful the draught memo and “corrected” it for the last version. Mr. De Filippis did not code references to a lawsuit successful the earlier emails.

Those disclosures followed a tribunal filing connected Monday by Mr. Sussmann’s defence squad that revealed contradictory things Mr. Baker had said nether oath astir the cardinal enactment successful Justice Department interviews, which Mr. Durham’s squad disclosed to them past week.

In 2019 and 2020 interviews, Mr. Baker recalled the enactment successful 2 antithetic ways that each clashed with the indictment’s version. In the first, helium said Mr. Sussmann told him the cyberexperts who developed the Alfa Bank mentation “were his clients.” In the second, helium said Mr. Sussmann ne'er said if helium was representing anyone and Mr. Baker didn’t ask, but assumed helium had nary client.

In the Tuesday tribunal filing, Mr. Durham’s squad accused the defence of “cherry-picking” the grounds and putting guardant a “skewed portrayal.”

The 2019 and 2020 interviews “occurred years aft the events successful question, and Mr. Baker made these statements earlier helium had the accidental to refresh his recollection with contemporaneous oregon near-contemporaneous notes,” they said, adding that helium had since “affirmed and past re-affirmed his now-clear recollection of the defendant’s mendacious statement.”

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